One key thing I agree that you pick up on is “if a court finds any part of the contract illegal (or unenforceable)”. There, the SPSA by its own terms requires a court to make a legal finding of an illegal or unenforceable contract. Unless and until such a claim, which is *usually a defense*, is fully litigated, this whole discussion is just academic.
(And note FHFA has no reason to raise an illegal contract defense at the 11th hour, because FHFA is not being sued by the Treasury, so such a defense cannot apply).
But for the sake of discussion (emphasis, academic) I would add:
One, I suppose a stock holder might use the Lamberth evidence (whatever it was) to file a third party claim demanding FHFA sue UST to litigate the NWS as contractually illegal or unenforceable. Assuming derivative standing was granted (not barred by the succession clause), Ps remedy demand would then need to be injunctive in nature, and thus wouldn’t it be barred by the anti-injunction clause?
Two, still let’s ignore HERA’s bars, momentarily. Can we then explain and apply the state substantive contract law on Ps side such that the P could persuade a court they’ve stated a claim upon which relief can be granted?:
Ps Illegality claim looks like a guaranteed loss, because the NWS was legislatively authorized (per SCOTUS).
Ps Unenforceability claim is slightly less black & white, but, how can Ps persuasively argue that the NWS contravened public policy when in fact (per SCOTUS) the NWS served “the public”?
In the end, I get you that if Lamberth’s facts are more aggravated from what SCOTUS saw (I don’t know), then that might be potentially helpful to a future claimant. But here again, a simple breach does not an illegality make. So . . . I think, as-is, your ready-made outcome is not quite as ready as you might like. But it’s a novel approach so GL with it.
